Newell and National Disability Insurance Agency

Newell and National Disability Insurance Agency [2023] AATA 4140 (13 December 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2021/4728
Re:Mandy Newell
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K. Parker
Date:13 December 2023
Place:Melbourne

The Tribunal affirms the Decision Under Review not to grant the Applicant access to the National Disability Insurance Scheme, because the Applicant does not meet the access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The Tribunal is not satisfied that she meets either the “disability requirements” under s 24 or the “early intervention requirements” under s 25 of the NDIS Act.
.................................[sgd].......................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – access request – whether access criteria under s 21 of the National Disability Insurance Scheme Act 2013 (Cth) are met – “disability requirements” under s 24 – “early intervention requirements” under s 25 – Applicant has disability arising from various physical and psychosocial impairments – bipolar affective disorder type II – anxiety and depression – hand conditions – back, neck and shoulder issues – osteoarthritis – whether impairments are, or likely to be, permanent – whether impairments have resulted in substantially reduced functional capacity in any one of the six prescribed activities – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Home and Community Care Act 1985 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)
Cases
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v Davis [2022] FCA 1002
National Disability Insurance Agency v Foster [2023] FCAFC 11
Secondary Materials
Explanatory Memorandum, National Disability Insurance Bill 2012 (Cth)
National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 28 September 2023) < FOR DECISION
Senior Member K. Parker
13 December 2023
INTRODUCTION

This application is about whether the Applicant, Ms Mandy Newell, should be granted access as a participant in the National Disability Insurance Scheme (NDIS). Ms Newell seeks review of a decision made on 26 June 2021 by a “reviewer” under sub-s 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) (Decision Under Review).[1] This decision confirmed an earlier decision by the Respondent, the National Disability Insurance Agency (NDIA), not to grant access to Ms Newell as a participant in the NDIS.
[1] The NDIA lodged a set of documents with the Tribunal pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T-Documents). Refer T-Documents, T2/12.
The Administrative Appeals Tribunal’s (Tribunal) jurisdiction arises under sub-s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), operating in conjunction with s 103 of the NDIS Act.
For the reasons set out below, the Tribunal affirms the Decision Under Review because it is not satisfied that Ms Newell meets the access requirements under s 21 of the NDIS Act.
BACKGROUND
Family, education, and employment background
Ms Newell is a single woman in her mid-50s. Ms Newell has seven adult children (aged between 22 and 37), and 18 grandchildren. Ms Newell has several bodily conditions and mental health issues.
Ms Newell reported that she has dyslexia and, consequently, struggled at school. She said she was required to repeat either grade 4 or 5. She left school at the beginning of Year 10.[2]
[2] Report by Dr Anthony Cidoni, consultant psychiatrist, dated 3 July 2022 (Dr Cidoni’s Report), [25] – see Ms Newell’s Hearing Tender Bundle (HTB), 18-26.
After leaving school, Ms Newell worked in a clothing company for one year, a laminating company for two years, and in retail, for several years. She said she used to work as a painter and decorator but had to cease this work, due to pain in her hands and upper body. She said she cannot hold paint brushes anymore. In 2022, Ms Newell informed Dr Anthony Cidoni, consultant psychiatrist, that she last worked 24 years ago.[3] Ms Newell is presently unemployed and has been in receipt of the disability support pension since 2005.
[3] Dr Cidoni’s Report, [25].
Since November 2021, Ms Newell has been living alone in a public housing, two-bedroom, one-bathroom unit in a coastal Victorian town. Ms Newell said the bathroom is quite large and designed to be wheelchair accessible. She said the doors are wider than usual and the toilet is “quite high”.[4] She described her back yard as being a “good size” but “not massive”. The back yard surface area comprises mainly of concrete.[5] The front yard has some grassed areas and requires maintenance.[6] Ms Newell said she had removed the shrubs alongside the driveway because she was unable to get down to do the weeding. She said that the “Housing Commission” was supposed to send somebody out to do the weeding. She said she had agreed to an offer by one of her neighbours for him to do it.[7]
[4] See also Supplementary HTB, 40-79.
[5] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 29.
[6] See also Supplementary HTB, 40-79.
[7] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 30.
Ms Newell’s adult children live in various locations. Her two eldest sons and her second youngest daughter live in Queensland. Her eldest daughter lives about a one and half hour’s drive from her home and has five children/stepchildren. Ms Newell’s second eldest daughter has three children and Ms Newell said she is about to relocate to far Northwest regional Victoria. Ms Newell’s youngest son lives one-hour’s drive from her, and her youngest daughter lives a 30-minute drive from her and has a set of two-year-old twins. Ms Newell says four of her grandchildren are living in Queensland and the other 14 grandchildren live in Victoria.
Ms Newell has an older sister living in Warrnambool, but she says she does not see her very often. Ms Newell said she has a younger brother who lives in different places. She said his last address was in Melbourne.
History of impairments
Ms Newell relies upon the following impairments in seeking access to the NDIS under either s 24 or s 25 of the NDIS Act:[8]
(a)physical impairments resulting from:
(i)hand impairments, which she attributes to carpel tunnel syndrome and gamekeeper’s thumb. On the first day of the hearing, Ms Newell’s lawyer confirmed that Ms Newell also attributes the hand impairments to osteoarthritis; and
(ii)chronic back pain and stiffness, which she attributes to osteoarthritis and scoliosis; and
(b)impairments to which a psychosocial disability is attributable, resulting from bipolar affective disorder (type II), depression and anxiety.
[8] Ms Newell’s Statement of Facts, Issues and Contentions (SFIC), dated 5 May 2023,12 - see Ms Newell’s HTB, 57.
The Tribunal will refer to the impairments described in:
(a)paragraph [10] collectively as the Claimed Impairments;
(b)paragraph [10(a)] collectively as the Claimed Physical Impairments; and
(c)paragraph [10(b)] collectively as the Claimed Psychosocial Impairments.
Request for access to the NDIS
Ms Newell has made a request to the NDIA, under s 18 of the NDIS Act, to be granted access as a participant in the NDIS. This request was made by giving the following documents to the NDIA:
(a)an undated NDIA Access Request Form, completed by Dr Ferdinand Pranadi, general practitioner from Cobden, Victoria, and additional note by Ms Newell stating that she was taking 60 mg of mirtazapine daily for her depression;[9]
(b)a report issued by Ms Ruth Alger, occupational therapist (OT), dated 19 October 2020;[10]
(c)a NDIA Access Request Form, completed by Dr Rebecca Schultink, dated 22 October 2020. Dr Schultink states on this form that Ms Newell needed assistance with mobility, self-care (with dressing and showering) and self-management (including basic cleaning tasks) but did not require assistance with communication, social interaction, or learning;[11]
(d)letter issued by Dr Athula Ratnayake, consultant psychiatrist, South West Healthcare, dated 25 January 2021 (Dr Ratnayake’s Letter);[12]
(e)a NDIA Evidence of Psychosocial Disability Form, being a supporting evidence form (SEF), completed by Mr Garry Aggett, mental health nurse, dated 22 March 2021 (Mr Aggett’s SEF);[13] and
(f)a NDIA Access Request Form, completed by Ms Newell on 25 March 2021 (2021 Access Request Form).[14]
[9] T-Documents, T13/67-74. Ms Newell was seeing this doctor when she previously resided in Cobden, Victoria.
[10] Ibid, T5/27-29.
[11] Ibid, T6/30-38.
[12] Ibid, T8/40-42.
[13] Ibid, T9/43-51
[14] Ibid T10/52-60; Ms Newell gave evidence at the hearing that that she completed and signed this form.
Ms Newell described her impairments on the 2021 Access Request Form as impairments attributable to:
(a)depression, anxiety, post-traumatic stress disorder (PTSD) and bipolar affective disorder (type II); and
(b)osteoarthritis, carpel tunnel syndrome, gamekeeper's thumb, and chronic back pain (scoliosis and arthritis).[15]
[15] Ibid, T10/56.
Decision under review and application for review by this Tribunal
On 30 April 2021, a delegate of the Chief Executive Officer of the NDIA (CEO) decided not to grant Ms Newell access to the NDIS (Original Access Decision), on the basis that she did not meet the access criteria set out in s 21 of the NDIS Act, because she did not satisfy:
(a)the “disability requirements” under s 24 (specifically, para 24(1)(b), which requires Ms Newell to have an impairment that is permanent, or likely to be permanent); or
(b)the “early intervention” requirements under s 25 of the NDIS Act.[16]
[16] Ibid, T11/61-65.
On 3 May 2021, Ms Newell sought internal review of this decision by a “reviewer” of the NDIA under sub-s 100(6) of the NDIS Act.[17]
[17] Ibid, T12/66.
On 26 June 2021, the reviewer confirmed the Original Access Decision, being the Decision Under Review.[18]
[18] Ibid, T2/12.
On 15 July 2021, Ms Newell sought review of this the Decision Under Review by the National Disability Insurance Scheme Division of the Tribunal under s 103 of the NDIS Act.[19]
[19] Ibid, T1-T1A/1-11.
EVIDENCE AND SUBMISSIONS
On 6 August 2021, the NDIA lodged with the Tribunal a set of documents pursuant to s 37 of the AAT Act (T-Documents) comprising 179 pages.
On 8 May 2023, Ms Newell lodged a Statement of Facts, Issues and Contentions (Ms Newell’s SFIC).
On 20 June 2023, Ms Newell lodged a supplementary SFIC (Ms Newell’s Supplementary SFIC).
On 22 June 2023, the NDIA lodged a SFIC (NDIA’s SFIC).
The following hearing tender bundles (HTBs), comprising the parties’ respective submissions and evidence, were lodged with the Tribunal:
(a)Ms Newell’s HTB, lodged on 8 May 2023 (Ms Newell’s HTB), comprising 76 pages;
(b)the NDIA’s HTB, lodged on 13 June 2023 (NDIA’s HTB), comprising 607 pages; and
(c)a Joint Supplementary HTB lodged on 20 July 2023 (Supplementary HTB), comprising 440 pages.
The Tribunal received the exhibits contained in these three HTBs into evidence in this proceeding.
The Tribunal conducted a substantive hearing over four days on 26 and 27 June 2023 and 19 and 20 July 2023. Ms Newell was represented by Victoria Legal Aid (VLA) and Mr Bryn Overend of counsel. Ms Tegan Weir of HWL Ebsworth Lawyers appeared as Solicitor Advocate on behalf of the NDIA.
At the hearing, the following witnesses were called to give evidence:
(a)Ms Newell;
(b)Ms Newell’s former treating OT, Mr Tom Chapman. Mr Chapman graduated with a master’s degree in OT in about 2016 and has worked as an OT at South West Healthcare for about seven years treating patients in wards and out-patients. Mr Chapman said he has been working in his current role “in hand therapy” since February 2022 with previous “stints” doing so, during rotations in previous years.[20] Ms Newell was treated by three different OTs at South West Healthcare, first, Leanne Jackson, then, Lucinda Watson, and then, Mr Chapman as from 3 February 2022. Mr Chapman saw Ms Newell weekly for about two months, following which he saw her fortnightly. Mr Chapman has issued three reports in relation to Ms Newell as follows:
(i)report dated 4 April 2022 (Mr Chapman’s First Report);[21]
(ii)report dated 12 December 2022 (Mr Chapman’s Second Report);[22] and
(iii)report dated 21 March 2023 (Mr Chapman’s Third Report);[23]
(c)a further treating OT and an Australian Hand Therapy Association (AHTA) accredited hand therapist, Mrs Josephine Gibbs. Mrs Gibbs has issued several reports in relation to Ms Newell. The paperwork maintained by Mrs Gibbs relating to Ms Newell was difficult to follow and needed to be revised half way through the hearing.
[20] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 51.
[21] Ms Newell’s HTB, 3-7.
[22] Ibid, 27-31.
[23] Ibid, 32-36.
Specifically, on the second day of the hearing, on 27 June 2023, it became apparent that Mrs Gibbs had prepared other documents regarding the functional assessment she undertook of Ms Newell which had not been lodged with the Tribunal. Mrs Gibbs told the Tribunal she had sent them to a former solicitor of VLA who previously had carriage of Ms Newell’s matter and has since departed the organisation. Ms Newell’s current solicitor said he was unable to locate those documents. The Tribunal considered it appropriate to adjourn the matter to allow for those documents to be forwarded by Mrs Gibbs to Ms Newell’s current VLA lawyer, so that they could be lodged with the Tribunal and given to the NDIA.
The Tribunal arranged for the matter to be listed for a resumed hearing on 19 and 20 July 2023, by consent of both parties, at which time Mrs Gibbs and Ms Newell were recalled to complete giving their evidence. Further submissions were lodged by the parties after the hearing, including two emails from Ms Newell’s lawyer on 26 September 2023 and 5 October 2023, further submissions by NDIA on 6 October 2023 and further submissions lodged on behalf of Ms Newell on 12 October 2023.
LEGISLATIVE FRAMEWORK
Section 21 of the NDIS Act provides that a person satisfies the access criteria if they meet:
(a)the “age requirements” under s 22;
and, at the time of considering the access request;
(b)the “residence requirements” under s 23 of the NDIS Act; and
(c)the “disability requirements” under s 24 (as set out in paragraph [47] below) or the “early intervention requirements” under s 25 (as set out in paragraph [211] below).
ISSUES
The NDIA accepts that Ms Newell meets both the “age requirements” and “residence requirements” under ss 22 and 23 of the NDIS Act, respectively. This was not in contest and the Tribunal finds accordingly.
The issues arising for determination by the Tribunal in this application are:
(a)whether Ms Newell meets the “disability requirements” under s 24 of the NDIS Act; or, alternatively,
(b)whether Ms Newell meets the “early intervention requirements” under s 25 of the NDIS Act.
Ms Newell’s position is that she meets the “disability requirements” under s 24 or, alternatively, the “early intervention requirements” under s 25 of the NDIS Act in respect of one or more of the Claimed Impairments.
Regarding the “disability requirements” under s 24, the NDIA accepts that Ms Newell satisfies paras 24(1)(a), (b), and (d) of the NDIS Act in respect of the Claimed Impairments. However, the NDIA contends that paras 24(1)(c) and (e) are not met in respect of these impairments. In relation to para 24(1)(c), Ms Newell confirmed at the hearing that she contends that any one or more of these impairments have resulted in a “substantially reduced functional capacity” in the prescribed activities under this paragraph, of “self-care”, “social interaction” and “self-management”. The predominance of evidence before the Tribunal related to these three activities. However, the Tribunal will address all six prescribed activities under s 24(1)(c) of the NDIS Act.
Regarding the “early intervention requirements” under s 25, the NDIA accepts that para 25(1)(a) has been met in respect of these impairments, but not paras 25(1)(b), (c) and sub-s 25(3) of the NDIS Act.[24]
[24] NDIA’s SFIC, [8] – [10].
ACCESS RULES AND POLICY GUIDANCE
Subsection 209(1) of the NDIS Act provides that the Minister may, by legislative instrument, make rules prescribing matters required or permitted under the NDIS Act, or necessary or convenient to be prescribed, in order to carry out or give effect to the NDIS Act. Section 27 of the NDIS Act permits the Minister to make NDIS rules prescribing circumstances in which, or criteria to be applied, in assessing whether any of the disability or early intervention requirements are met under ss 24 or 25, respectively, of the NDIS Act.
Pursuant to sub-s 209(1) of the NDIS Act, in conjunction with s 27, the Minister has issued the following rules by legislative instrument: National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (Access Rules).
The NDIA has issued policy guidance dealing with the assessment of whether a person meets the disability or early intervention requirements under ss 24 or 25 of the NDIS Act: Applying to the NDIS (Access Guidelines).[25] The Access Guidelines were last updated on 28 September 2023. The Tribunal will take this policy guidance into account when making this decision, unless there are cogent reasons not to do so, for instance, if the policy guidance is inconsistent with the provisions of the NDIS legislative regime.
CONSIDERATION OF WHETHER MS NEWELL MEETS THE “DISABILITY REQUIREMENTS”
[25] National Disability Insurance Agency, NDIS Operational Guidelines: Applying to the NDIS (Guidelines, 28 September 2023) <>
The “disability requirements” under s 24 of the NDIS Act are made up of five mandatory criteria as follows:
24 Disability requirements
(1)       A person meets the disability requirements if:
(a)the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b)the impairment or impairments are, or are likely to be, permanent; and
(c)the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i)        communication;
(ii)       social interaction;
(iii)      learning;
(iv)      mobility;
(v)       self-care;
(vi)      self-management; and
(d)         the impairment or impairments affect the person’s capacity for social or economic participation; and
(e)the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2)For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3)For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4)Subsection (3) does not limit subsection (2).
Detailed medical history

Ms Newell states that her conditions are permanent and that she is likely to require support for her lifetime. She states that she has been to doctors and hospitals, and received therapies and medical services over the years, for her “main medical conditions”.[26]
[26] Ms Newell’s Statement of Lived Experience – see Ms Newell’s HTB, 39, as amended 26 June 2023 and lodged 27 June 2023 (Ms Newell’s SLE).
Spine
Ms Newell stated that 28 years ago she was diagnosed with scoliosis, being curvature of the spine. She stated she has “spurs growing out of” her spine.
Hands
In Ms Newell’s Statement of Lived Experience, she stated she first sought medical assistance in 2003 for pain in her left hand. She stated that as from 2013, she underwent hand therapy, occupational therapy, physiotherapy, and she has worn a splint. At the hearing, Ms Newell clarified that she was no longer wearing a split on her hand as it caused her irritation. Ms Newell stated that in 2016, she had a scapholunate ligament reconstruction surgery on her left hand and, in 2020, she had surgery for carpal tunnel release and gamekeeper’s thumb on her right hand. Ms Newell stated that, in 2022, she had surgery to remove trapezium bone in her right hand. She stated that the bones in her right thumb had separated from the muscle and this bone is now fused and has a screw in it for life. Ms Newell stated that this operation did not relieve the pain and that she cannot touch the palm of her right hand with her right thumb and it does not move forwards anymore. This makes it hard for Ms Newell to grip objects.
Shoulders
Ms Newell stated that she has bursitis in both shoulders and will often experience flare-ups. She stated that she had tried cortisol treatments; however, the pain in her shoulders continues. Ms Newell stated that magnetic resonance imaging (MRI) in June 2021 confirmed that she had osteoarthritis, but she stated that it had begun before this time.
Neck
In Ms Newell’s SLE, she states as follows about her neck:
I am unable to put chin to my shoulder due to pain in my neck. I was previously seeing Dr Jay Smith, Chiropractor for alignment adjustments and relief. I am unable to afford to continue to see a Chiropractor and haven’t had treatment for 12 months. The pain in my neck, back and shoulders has increased since I stopped Chiropractor treatments.
Mental Health
In relation to her mental health conditions, Ms Newell stated that her depression had begun when one of her sons was three years old. She stated that it is tied to a hormonal imbalance with her thyroid. Ms Newell stated that she had anxiety arising from a previous traumatic relationship, which she stated had also caused her bipolar disorder. She stated that she takes a mood stabiliser for her bipolar disorder. Ms Newell also informed the Tribunal about a traumatic incident that took place a long time ago when one of her children sustained significant burns.
Diabetes, thyroid condition, heart condition, plantar fasciitis
Ms Newell also says she lives with numerous other physical conditions, including diabetes, which she stated she was diagnosed with in 2013 and commenced treatment in 2014. She also stated that she was diagnosed with “hyper thyroid” at age 23; and in 1987 with supraventricular tachycardia which she has had since birth and required surgery in 2014. Ms Newell stated that she also has plantar fasciitis and can only stand for limited periods due to pain in her feet.
In 2022, Dr Cidoni reported that Ms Newell had informed him that she had also had a history of:[27]
(a)fatty liver;
(b)that she had been diagnosed with lupus in the past, however, this diagnosis has since been excluded in recent testing; and
(c)heart problems, specifically, supraventricular tachycardia since 2014 and that she underwent a procedure (an ablation) to seal a hole in her heart (see paragraph [44] above).
[27] Dr Cidoni’s Report, [29]-[31].
At the hearing, Ms Newell confirmed that she only relies upon the Claimed Impairments, in seeking access the NDIS as a participant.
Impact of Ms Newell’s impairments
Ms Newell says that her hand strength and range of motion are significantly reduced and that her pain is constant. She says she experiences both physical and mental fatigue daily. She says these impairments stop her from living a normal life. In 2022, Ms Newell is reported to have informed Dr Cidoni that she used Panadol up to four times a day.[28]
[28] Dr Cidoni’s Report, [28].
Ms Newell says she used to play darts, socially and competitively, but that she has now ceased playing darts. She said it upsets and frustrates her that she cannot play darts like she used to. She said she also used to play ten-pin bowling but stopped playing this after a shoulder operation in 2003. Ms Newell said she also used to be a dancer throughout her childhood and during her 20’s but has ceased this due to joint pain. Ms Newell says she used to attend gym regularly and enjoyed it but is unable to do many exercises due to pain. Ms Newell says she is no longer able to draw, paint, knit or sew clothing, cut fabric, guide materials through a sewing machine, and her inability to do these hobbies has made her feel “frustrated and anxious”.[29]
[29] Ms Newell’s SLE, [9].
Ms Newell says she cannot garden as much as she used to, because of the pain in her hands, back, neck and shoulders. She said she has a garden and a few pot plants.
Ms Newell states she does not socialise as much as she used to, because she is self-conscious about her weight, feeling judged by others when she goes out in public. The Tribunal asked Ms Newell about this at the hearing. Ms Newell said she used to be underweight due to her thyroid problem and she was concerned that people might think, from her appearance, that she was a drug user. At the hearing, Ms Newell agreed that based on her current weight, that she is no longer thin. The difficulty appeared to arise from her now thinking that she is overweight and that people might judge her about that. At the hearing, Ms Newell gave evidence that she is 168cm tall and she weighs 71 kilograms. Ms Newell acknowledged that her doctors do not consider her to be overweight but, despite this, she indicated that she is not satisfied with her weight. Based on these matters, it was hard to understand Ms Newell’s rationale in respect of her being concerned about people judging her if she were to go out into the public at the present time. The Tribunal does not accept this evidence by Ms Newell and considers it is more likely that she does not go out into the public as much as she could for other reasons, specifically, because she is unmotivated to do so as a result of her depression.
Ms Newell said she has a small group of friends with whom she socialises, and that she is “close” with her next-door neighbour. At the hearing, Ms Newell said there were times when she will not see her neighbour for long periods of time. Ms Newell says she tries to spend time with her children, extended family, and grandchildren. At the hearing Ms Newell explained that her children do not help her as much as she would like them to, and that she did not know why this is the case. Ms Newell became tearful when giving this evidence.
Ms Newell said she cannot be the grandmother to her grandchildren that she would like to be and that she has to modify the way she picks up her grandchildren using her arms. She says she is no longer able to pick up the two-year-old twins.
Ms Newell referred to going on trips with her daughter if she is travelling to see other members of the family in Victoria. She referred to being limited as to where she is able to drive and cannot drive long distances. At the hearing, Ms Newell explained when she turns corners when driving, she will need to take the turn very slowly due to the impairments in her hands.
Ms Newell says the pain in her body negatively impacts her mental health daily. She says she manages her pain with Panadol which provides mild pain relief. She says she has an allergy to codeine, and a reaction to Endone and morphine.
Treatment of physical conditions, reported outcomes and prognosis
Ms Newell’s current treating general practitioner (GP), Dr Richardson, in her letter dated 29 October 2021,[30] referred to the surgery on Ms Newell’s right wrist, remarking that it had “caused more rather than less pain”. Dr Richardson states in this letter that Ms Newell was limited with many household duties and had difficulty vacuuming, mopping floors, cleaning the bathroom and toilet, making the bed, cutting vegetables, and lifting shopping. This is based on self-reporting by Ms Newell as there was no evidence before the Tribunal that Dr Richardson has ever conducted a functional capacity assessment of Ms Newell at Ms Newell’s current or former homes or in any other place. Dr Richardson states in her letter that those activities aggravate pain in Ms Newell’s hands, arms, back or shoulders and “can trigger her heart racing and shortness of breath”. Dr Richardson referred to Ms Newell having had surgery on her left wrist in Queensland some years ago, and several different surgeries in both wrists in Warrnambool.
[30] Exhibit A12.
Dr John Masters is Ms Newell’s plastic and reconstructive surgeon in relation to her hand conditions. Following a request by the NDIA’s lawyers to do so (with Ms Newell’s consent), Dr Masters issued a medical report dated 5 April 2022 (Dr Master’s Report).
Dr Masters said Ms Newell had been referred to him in May 2020 for assessment and management of her bilateral wrist pain and weakness. He said she had seen “Mr Mitra in Warrnambool” and “Mr Page in Geelong” prior to this. Dr Masters states that Ms Newell believed her wrist pain was due to a fall she had experienced. He said he had only focussed on the right wrist over the previous two years; however, the left wrist had also caused her difficulty and discomfort. He said that a negative “Watson’s shift test” on her left wrist had implied that she had a “stable scapholunate ligament”. Dr Masters noted that Ms Newell gave a history of de Quervain’s tenosynovitis, which was treated by “Mr Fisher” with a “good result in some years past”.
Dr Masters states that on 1 October 2020 he undertook a release of Ms Newell’s right carpel tunnel, repair of the right thumb metacarpophalangeal joint (MCPJ) and ulnar collateral ligament, and a steroid injection into the right thumb carpometacarpal joint (CMCJ). He states that this resulted in a “substantial improvement in [Ms] Newell’s symptoms”. Dr Masters states that the steroid injection led to good pain relief for the CMCJ and that her symptoms were “vastly improved for a short period of time”. However, he states the steroid injection “wore off” and her CMCJ pain returned as intense as it was preoperatively. Dr Masters states that he decided to undertake a right trapeziectomy and suspension arthroplasty on 9 August 2021 and that this procedure was “uneventful”.
Dr Masters reports that Ms Newell was referred to him again on 23 September 2021 upon Ms Newell having a “forced flexion of the [MCPJ] of her right thumb” after she dropped “large books” she was carrying. He states this had caused increased swelling and decreased movement in Ms Newell’s thumb with moderate pain. Dr Masters states that the X-ray at that time had revealed a “good result from the trapeziectomy and no new injuries”. Dr Masters opines, from his most recent consultation with Ms Newell, that “it was apparent that the majority of her right hand pain was coming from her thumb MCPJ secondary to osteoarthritis”. He scheduled Ms Newell for a fusion of the joint.
Dr Masters states that Ms Newell’s discomfort in her right thumb was emanating from the MCPJ and her pain is “constant aching and is worse after use”. Dr Masters states that Ms Newell’s carpal tunnel syndrome symptoms had completely resolved following the release (including the numbness of the right thumb), and the “1^st CMCJ” (that is, the thumb CMCJ) symptoms had improved with the trapeziectomy and suspension arthroplasty. He states that “the trapeziectomy was progressing very nicely with symptom relief when seen last”. He states that Ms Newell’s MCPJ gamekeeper’s thumb was effectively treated by the ligament reconstruction. He noted that she still experienced some residual discomfort. He states that the ulnar side of the wrist was tender but not posing significant functional issues.
Dr Masters stated that there are very few activities of daily living involving the right hand with which Ms Newell was not experiencing symptoms. He stated that, essentially, any functional use of the thumb would cause significant pain and that Ms Newell had reported difficulty and/or inability to write, open tins, cans, and bottle lids, use a knife to cut vegetables, peg out washing, hold objects (e.g., iron), pinch objects (e.g., putting on socks, opening packets, etc), holding keys to turn locks and picking up small and light items such as pins or toothbrushes. He stated that Ms Newell’s symptoms are primarily related to her right wrist and that he had not been involved in the care of her left wrist for the previous two years. Dr Masters states that hand therapy plays a vital role in the recovery from any surgical procedure. He stated that Ms Newell had received hand therapy elsewhere and that he did not have feedback as to what was done (other than to note it reportedly included some splinting) or how effective it was. As mentioned above, Ms Newell told the Tribunal at the hearing that she did not use the splint because it had caused her irritation.
In Dr Masters’ Report, he stated as follows (emphasis added):
Currently, [Ms] Newell’s symptoms seem to be all emanating from her right thumb MCPJ osteoarthritis. Without surgery, her symptoms are only likely to continue to escalate. With surgery, the pain emanating from her MPCH is likely to completely cease. I do not have papers to quote; however, anecdotally this is a commonly performed procedure with almost universally good outcomes. Once her thumb pain is alleviated, I suspect that this will unmask further central and ulnar-sided wrist pain and these will be assessed and dealt with appropriately, as well as her left wrist pain.
Dr Masters states that the only proposed surgery for Ms Newell was MCPJ arthrodesis and it would require relatively short-term splinting and mobilisation in the region of four to six weeks. He said the splint would have only a minimal impact on her ability to self-care given her extended period of thumb pain and her already adapted coping mechanisms.
Dr Masters concluded that he had no doubt that Ms Newell is experiencing significant functional issues with her bilateral hand and wrist pain. He said the treatment plan for her would continue to be “progressively serially advanced, addressing the most pressing demands/painful symptoms”. He said he was “optimistic that we will achieve significant relief of her symptoms in due course, but this may take several years yet given the extensive nature of her pain and its bilateral presence”.
In Mr Chapman’s Third Report, he stated that he was no longer recommending any further hand therapy for Ms Newell because there had been no change in her function. At the hearing, Mr Chapman was asked by the Tribunal why Ms Newell had been discharged from OT. Mr Chapman informed the Tribunal that “[w]e chose to cease therapy based on the fact the outcomes measures had plateaued and her method of completing her tasks weren’t able to be changed in line with any recommendations that I would make, largely based on financial hardship. So we were at a point where my recommendations were that she should try certain pieces of equipment and she acknowledged that they may help but she didn’t have the finances to purchase them”.[31] Mr Chapman said it was his decision that the treatment cease, and this was agreed to by Ms Newell. He said there were no new strategies or information that he could give to Ms Newell.[32] During cross-examination, Mr Chapman said that future therapy for Ms Newell, in line with education for equipment, may be of benefit, but he did not consider it to be a “changing factor” that would “remove her deficits”.[33]
[31] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 63.
[32] Ibid.
[33] Ibid, 72.
Mr Chapman informed the Tribunal that he had made a recommendation to Ms Newell’s GP that she be referred to a “chronic pain clinic”. He said he was unaware what had happened in relation to that recommendation.[34] He said that Ms Newell “would benefit from a diagnosis of chronic pain or CRPS, which I can’t give” and that once that had occurred, if she was still experiencing chronic pain, she would benefit from participating in a chronic pain clinic. He confirmed this was the same as a pain management clinic. He explained that, in Warrnambool, there would not be medical oversight at such a clinic, but Ms Newell would have access to education and strategies from therapists.[35] Mr Chapman said Ms Newell would “potentially” benefit from having access to a seven-week program which he mentioned was available at Warrnambool and based on education and gentle exercise. He said no guarantees can be made about whether someone can make gains with their chronic pain.[36] He also said Ms Newell would not be eligible to attend such a program until her rehabilitation process in respect of her knee had “finished”.[37] Mr Chapman said he had not asked Ms Newell if she had ever attended a pain management clinic previously.[38]
[34] Ibid, 63-64.
[35] Ibid, 64.
[36] Ibid.
[37] Ibid.
[38] Ibid.
Diagnosis, treatment, and prognosis of mental health conditions
In Dr Cidoni’s Report, he described Ms Newell’s past psychiatric history as follows:[39]
(a)Ms Newell began suffering depression approximately 30 years ago, with treatment from about 28 years ago;
(b)her youngest daughter suffered a burn injury 15 years ago, which caused Ms Newell’s depression to deteriorate;
(c)Ms Newell had reported a chronic history of low mood and had described “very significant, almost complete, social withdrawal, reduced motivation, reduced enjoyment, poor sleep, at times having as little as three hours per night, reduced motivation, and reduced energy. She stated that she wonders whether life was worth living and if someone had a gun, she would ask them to shoot her”;
(d)Ms Newell reportedly experienced periods of elevated mood with a reduced need for sleep, increased energy, and overspending;
(e)Ms Newell had described a history of social anxiety for about six years (prior to 2022) and that she lacked confidence and worried about being judged. She had reported having nightmares and some flashbacks. She also reported some obsession around cleaning but there were no other specific obsessive compulsive disorder symptoms or history of psychosis; and
(f)Ms Newell had not ever attempted suicide nor had a history of any mental health admissions.
[39] Dr Cidoni’s Report, [32]-[43].
In Dr Ratnayake’s Letter, his impression of Ms Newell’s mental health conditions was bipolar II disorder, social anxiety related to low self-confidence and some post-traumatic symptoms without a syndromal post-traumatic stress disorder. He recommended that Ms Newell commence on lamotrigine, a mood stabiliser, that Ms Newell has taken since shortly after that review, at a dose of 100 milligrams per day.[40]
[40] T-Documents, T8/40-42.
Dr Ratnayake’s Letter sets out a further account of Ms Newell’s report to him about this medical treatment and other treatments she had received, as follows:[41]
40. She said since starting this medication, her periods of elevated mood have reduced to monthly and feels less angry and calmer, although she is still locking herself away and not going anywhere.
41. Her sleep has mildly improved.
42. She was originally initially with the antidepressant sertraline for 12 months which did not make much difference, then she received a second antidepressant which also was not effective. She has been on the antidepressant mirtazapine for approximately 20 years with a current and usual dose of 60 milligrams.
43. She had psychotherapy in Queensland weekly for several years, has seen a mental health nurse Garry Aggett in Victoria since 11 December 2020 and she has seen Sue Richardson for psychotherapy. She has run out of sessions on her current mental health plan. She is unable to afford any further therapy.
[41] Dr Cidoni’s Report, [39].

At paragraph [49] of Dr Cidoni’s Report, Dr Cidoni made reference to Mr Aggett’s SEF. Mr Aggett had stated that Ms Newell experienced anxiety when going out of her home. Mr Aggett reported that his and Dr Richardson’s consultations with Ms Newell for her mental health issues and trauma, had been “partially effective”. Mr Aggett opined that cognitive behavioural therapy, behavioural activation, anxiety management and graded exposure would likely remedy Ms Newell’s impairments.
Upon examining Ms Newell on 9 June 2022, Dr Cidoni stated in his report that:[42]
(a)Ms Newell had described significant difficulties in social activities, saying that she had a couple of friends;
(b)she saw a dart team weekly;
(c)she showered every second day;
(d)she forgot things, for example, when shopping or directions to places; and
(e)she had reported difficulties budgeting, saying that she does not stick to a budget and overspent at times.
[42] Ibid, [52].
Dr Cidoni diagnosed Ms Newell as having bipolar II disorder. He said that while Ms Newell had some “components” of social anxiety and PTSD, those components were “insufficient to diagnose” those conditions.[43] Dr Cidoni disagreed with Mr Aggett’s opinion that further treatment would remedy the condition and, instead, opined that Ms Newell’s conditions are permanent, based on the following:[44]
(a)Ms Newell symptoms have been long-standing and persistent over time, without periods of significant remission;
(b)her symptoms have not fully responded to psychological treatment by at least three therapists and at least three antidepressants and a mood stabiliser, which indicates a significant degree of treatment-resistance persistence; and
(c)they are complicated and exacerbated by her persistent medical co-morbidities and chronic pain, which perpetuates her psychiatric condition.
[43] Ibid, [57].
[44] Ibid, [58].
Dr Cidoni states that he considers that Ms Newell has a substantially reduced functional capacity in relation to the activity of social interaction, explaining that her depression makes her socially withdrawn and her anxiety around people makes it hard for her to interact socially. He said she is avoidant of contact with others.[45] He states that Ms Newell’s cognitive screen only showed mild impairment of her concentration. He considers that she has moderate impairment when it comes to self-management, based on his view that she struggles to cope in interaction with others, to problem solve and that she did little planning.[46]
[45] Ibid, [60]-[61].
[46] Ibid, [63].
Dr Richardson states in her medical letter dated 1 June 2023, in relation to Ms Newell’s “mental health” that Dr Ratnayake, had provided advice about Ms Newell’s medication in January 2021 and recommended psychological therapy and regular visits to the GP. Dr Richardson said “we” have followed that advice, “to see Ms Newell regularly”. She said she had utilised eye-movement desensitisation and reprocessing (EMDR), acupuncture and counselling with “encouraging results for her mental wellbeing”.
Ms Newell was asked about this at the hearing, and she said she had used laser acupuncture to “try and get on top of pain”. She said that sometimes it would work for a couple of days. She denied that the acupuncture treatment was being used for her mental health and she said that this was what the EMDR was being used for. Ms Newell said the acupuncture did not cost her anything as she was able to get it through her doctor (she has the treatment at the GP’s clinic), and it was covered under Medicare. She said she had received acupuncture on about 10 occasions in 2023 (being a period of about seven months). She said the counselling was taking place with her GP.
Ms Newell was asked if she knew why Dr Richardson had stated in her letter that pain management was “not appropriate at that stage”. Ms Newell explained that it was not appropriate because the pain management clinic was located in Geelong. This was at odds with the evidence given by Mr Chapman, above.
Paragraph 24(1)(a) - Disability
The first criterion, under para 24(1)(a) of the NDIS Act, requires a person seeking access to the NDIS to have a “disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable”.
In National Disability Insurance Agency v Davis (Davis),[47] Mortimer J made the following judicial observation (emphasis in original):
What the legislative scheme focuses on is not the name of a person’s disability, nor the diagnosis given to a person – but rather what are the impairments experienced by a person which may require supports so that the person can participate in all aspects of personal and community life. It is the impairment which the scheme contemplates may affect the “functional capacity” of a person.
[47] [2022] FCA 1002, [69]. Her Honour Justice Mortimer is now the Honourable Chief Justice of the Federal Court of Australia.
The NDIA provides the following policy guidance to decision-makers in its Access Guidelines, which broadly reflects para 24(1)(a) of the NDIS Act (footnotes omitted):[48]
[48] Access Guidelines, 6-7.
Is your disability caused by an impairment?
When we consider your disability, we think about whether any reduction or loss in your ability to do things, across all life domains, is because of an impairment.
An impairment is a loss or significant change in at least one of:
•          your body’s functions
•          your body structure
•          how you think and learn.
To meet the disability requirements, we must have evidence your disability is caused by at least one of the impairments below
•intellectual – such as how you speak and listen, read and write, solve problems, and process and remember information
•cognitive – such as how you think, learn new things, use judgment to make decisions, and pay attention
•          neurological – such as how your body functions
•          sensory – such as how you see or hear
•          physical – such as the ability to move parts of your body.
You may also be eligible for the NDIS if you have a psychosocial disability. This means you have reduced capacity to do daily life activities and tasks due to your mental health.
It doesn’t matter what caused your impairment, for example if you’ve had it from birth, or acquired it from an injury, accident or health condition.
It also doesn’t matter if you have one impairment, or more than one impairment.
The NDIA accepts that Ms Newell has a “disability” within the meaning of para 24(1)(a) of the NDIS Act, arising from her Claimed Impairments. This was not in contest between the parties and the Tribunal finds accordingly.
Paragraph 24(1)(b) – Permanency
The second mandatory criterion, arising under para 24(1)(b) of the NDIS Act, requires a person seeking access to the NDIS to have one or more impairments that “are, or are likely to be, permanent”. The word “permanent” is not defined in the NDIS Act.
Rule 5.4 of the Access Rules provides that an impairment is considered permanent, or likely to be permanent, “only if there are no known, available and appropriate evidence-based clinical, medical, or other treatments that would be likely to remedy the impairment”.
Rule 5.5 of the Access Rules provides that:
An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
Rule 5.6 of the Access Rules provides that an impairment “may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent”. This rule also provides that:
The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
Rule 5.7 provides that if an impairment is of a degenerative nature, “the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition”.
The NDIA accepts that the Claimed Impairments are likely to be permanent and that Ms Newell meets the requirement under para 24(1)(b) of the NDIS Act.
Ms Newell has had a recent surgical intervention in relation to her hands and is still in recovery.
Rather surprisingly, given the reported seriousness of Ms Newell’s Claimed Psychosocial Impairments, she is not presently under the treatment of a psychiatrist, psychologist, counsellor, mental health nurse, and/or mental health service at the present time under the public health system. The only treatment being received by her for this are visits to her treating GP.
For present purposes, and on account of the NDIA’s concessions made in the lead up to the hearing, the Tribunal finds that the Claimed Impairments are likely to be permanent and that the requirements under para 24(1)(b) of the NDIS have been met.
The Tribunal will refer to the Claimed Impairments in the remainder of these Reasons for Decision collectively at the Permanent Impairments.
Paragraph 24(1)(c) – Substantially reduced functional capacity
The next step is for the Tribunal to consider whether one or more of the Permanent Impairments have resulted in a “substantially reduced functional capacity” of Ms Newell to undertake one or more of the activities of “social interaction”, “self-care”, “self-management”, “communication”, “learning” and “mobility”, under para 24(1)(c) of the NDIS Act (Prescribed Activities).
General approach
The Access Guidelines provide the following guidance in relation to the question of whether the criterion under s 24(1)(c) of the NDIS Act has been met by a person (footnotes omitted):[49]
[49] Ibid, 8-9.
Does your impairment substantially reduce your functional capacity?
Your permanent impairment needs to substantially reduce your functional capacity or ability to undertake activities in one of the following areas:
•Communicating – how you speak, write, or use sign language and gestures, to express yourself compared to other people your age. We also look at how well you understand people, and how others understand you.
•Socialising – how you make and keep friends, or interact with the community, or how a young child plays with other children. We also look at your behaviour, and how you cope with feelings and emotions in social situations.
•Learning – how you learn, understand and remember new things, and practise and use new skills.
•Mobility, or moving around – how easily you move around your home and community, and how you get in and out of bed or a chair. We consider how you get out and about and use your arms or legs.
•Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
•Self-management (if older than 6) – how you organise your life. We consider how you plan, make decisions, and look after yourself. This might include day-to-day tasks at home, how you solve problems, or manage your money. We consider your mental or cognitive ability to manage your life, not your physical ability to do these tasks.
Your impairment substantially reduces your functional capacity if you usually need disability-specific supports to participate in or complete the above tasks.
These disability-specific supports include:
•a high level of support from other people, such as physical assistance, guidance, supervision or prompting.
•assistive technology, equipment or home modifications that are prescribed by your doctor, allied health professional or other medical professional.
To help us decide if you’re eligible, we need to know your capacity and where you need more help. We get this information from your NDIS application.
If you have more than one permanent impairment we will consider them together, to see if they substantially reduce your functional capacity.
We consider how you’re involved in different areas of life like home, school, work and the community, and how you carry out tasks and actions. We also consider any other factors that may impact your day-to-day life.
Your needs might go up and down each day or each month. Progressive Multiple Sclerosis (MS) can be a good example of this. We consider your ability over time, taking into account your ups and downs.
The Tribunal is not bound by the descriptions provided in the guidance as to the six Prescribed Activities in para 24(1)(c) of the NDIS Act when assessing the criteria relating to “substantially reduced functional capacity”. However, broadly speaking, and subject to the matters referred to in paragraphs [94] to [99] below, the Tribunal considers that those definitions in the Access Guidelines serve as a good starting point.
As observed by her Honour Justice Mortimer (now, Chief Justice) in Mulligan v National Disability Insurance Agency (Mulligan),[50] this assessment calls for an examination of evidence given by the person seeking access to the NDIS, as well as medical and clinical evidence. The focus is a practical examination of what the person can and cannot do. Her Honour in Mulligan described the assessment as “avowedly functional, and multi-faceted” and that:
…No decision-maker need be satisfied a person’s impairment is “serious”, or more serious than another person’s. No qualitative judgments in that sense are called for.
[50] (2015) 233 FCR 201, [55]-[56]. Her Honour Justice Mortimer is now the Honourable Chief Justice of the Federal Court of Australia.
The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster (Foster),[51] decided that it was an error to apply the NDIA’s guidelines in a way as to equate a person’s inability to undertake one task forming part of “self-care” (that is, in that case, toileting) and to deem this to be the relevant activity for which functional capacity was required to be assessed.[52] The Full Court in Foster observed at [64] that (emphasis added):
[64]In the context of all the matters that comprise the concept of self-care, a decision-maker is required to make a functional, practical assessment of what a person can and cannot do.
[65] Rather than using the assessment tool, being the Guidelines, to reach a conclusion as to whether or not Mr Foster had substantially reduced functional capacity to undertake self-care by assessing his functional capacity with respect to the bundle of tasks and actions forming the concept of “self-care”, the Tribunal applied the Guidelines in such a way as to equate Mr Foster’s impairment with the single task of toileting and deemed that to be the relevant activity for which functional capacity was required to be assessed. That was an error.
[51] [2023] FCAFC 11.
[52] Foster, [65].
The judicial authority in Foster calls for the Tribunal to make an assessment of the person’s capacity to undertake the various tasks and actions comprising each of the Prescribed Activities, as a whole. The NDIA contends that the interpretation by the Full Court of the Federal Court of Australia in Foster stands for the proposition that a person does not necessarily have a substantially reduced functional capacity in relation to an activity because they have difficulty with one task related to that activity.[53] The Tribunal accepts this contention.
[53] NDIA’s SFIC, [28].
Rule 5.8 of the Access Rules elaborates upon when an impairment is taken to have resulted in a “substantially reduced functional capacity” to undertake any one or more of the Prescribed Activities. This rule provides as follows:
5.8An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a)the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b)the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c)the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
[Paragraph 5.8 is made for the purposes of paragraph 27(b) of the Act.]
As highlighted by the NDIA’s SFIC, the Full Court of the Federal Court of Australia in Foster addressed the question of what is meant by “effectively and completely” as appearing in r 5.8(a) of the Access Rules. Of note, Justice Derrington observed as follows (emphasis in original):
[83] In the overall legislative scheme, the adverb “completely” appears to be redundant, and in any event, unachievable. If “completely” is to be given its ordinary meaning, what is being asked of the rule is an assessment of whether a person’s impairment results in substantially reduced functional capacity to participate “wholly” or “perfectly” in the activities of communication, social interaction, learning, mobility, self-care and self-management – an impossible bar for almost everyone.
…
[88] Within this statutory context, and having regard to the purpose of s 24 as described in the revised Explanatory Memorandum, a person will not necessarily be deemed to have substantially reduced functional capacity simply because one task is unable to be completed without assistive technology. The task remains to assess the degree to which the person can participate in the activity.
As cautioned by the judicial observations in Mulligan, the Tribunal should not confine its consideration of whether a person has met the disability requirement under para 24(1)(c) of the NDIS Act, by considering their circumstances only through the prism of r 5.8 of the Access Rules.[54] Instead, her Honour Justice Mortimer (now, Chief Justice) made clear that the statutory task required the decision-maker to consider whether a person’s functional capacity is substantially reduced in any of the six Prescribed Activities.
[54] Mulligan, [77].
In relation to Ms Newell’s request to access the NDIS, the NDIA contends as follows (emphasis added):[55]
33. The Respondent submits that the current evidence does not indicate that the Applicant has any reduced capacity in relation to communication or learning. In relation to mobility, the report prepared by Ms Josephine Gibbs-Dwyer (Occupational Therapist and Accredited Hand Therapist) dated 12 June 2023 (Gibbs-Dwyer report) outlines that the Applicant is 'independent with mobility', although can 'only walk short distances due [to] pain caused by her arthritis joint stiffness' (p 8). The Applicant's Statement of Facts, Issues and Contentions does not address her functional capacity in relation to the domains of communication, learning, or mobility (see [48] - [78]). The Respondent does not consider that the Applicant has a substantial reduction in functional capacity in relation to communication, learning, or mobility and has not addressed these areas further in this Statement of Facts, Issues and Contentions.
34. The Respondent accepts that the evidence supports that the Applicant’s impairments affect her functional capacity in relation to self-care, social interaction, and self-management. However, the Respondent submits the evidence does not indicate that the Applicant’s capacity is substantially reduced…
[55] NDIA’s SFIC, [33]-[34].

The Tribunal has considered evidence about the impacts of the Permanent Impairments on Ms Newell’s functional capacity, including the following:
(a)the direct evidence of Ms Newell at the hearing about the extent of the reduction in her functional capacity;
(b)the information set out in the Access Request Forms lodged with the Tribunal by Ms Newell and the supporting medical evidence submitted with those forms;
(c)the evidence of Ms Newell, as set out in Ms Newell’s SLE;[56]
(d)the observations by Mr Chapman and Mrs Gibbs, based on their reports, clinical notes, and the oral evidence given by Mr Chapman and Mrs Gibbs at the hearing; and
(e)extracts from the summonsed medical and clinical evidence previously lodged with the Tribunal in respect of Ms Newell which includes the reports/notes of Dr Richardson, as drawn to the attention of the Tribunal at the hearing.
[56] Exhibit A8. At the hearing, Ms Newell adopted Ms Newell’s SLE as being true and correct. Ms Newell’s SLE was preceded by an undated and unsigned statement of lived experience by Ms Newell which she said a lawyer assisting her at the time had prepared (Original SLE) – Exhibit A9.
This evidence will be referred to in detail as the Tribunal considers whether one or more of the Permanent Impairments resulted in a substantially reduced functional capacity when undertaking any one or more of the six Prescribed Activities under para 24(1)(c) of the NDIS Act.
During closing submissions, Mr Overend contended that Ms Newell’s substantial reduction of functional capacity is “very much interrelated with the experience of pain”, as referred throughout Ms Newell’s SLE, Mrs Gibbs’ report dated 12 June 2023, and Mr Chapman’s and Ms Newell’s oral evidence given at the hearing. Mr Overend contends that Ms Newell is able to undertake various tasks and that “there’s no question about that, but those tasks are taken with varying levels of pain”.[57]
[57] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 263.
Ms Overend also highlights Ms Newell’s issues with managing her pain because of her allergy to medication.[58] He also highlights that Ms Newell has a desire to access pain management clinics if they were “financially” available (that is, “free”)[59] and “physically” available to her.[60] Mr Overend states that “in some cases”, Ms Newell’s pain is “severe and I would categorise it as debilitating pain”.[61]
[58] Ibid, 264.
[59] Ibid, 265.
[60] Ibid, 264.
[61] Ibid.
The Tribunal will deal, firstly, with the activity of “self-care”.
Self-care
Self-care is described in the Access Guidelines as follows:[62]
Self-care – personal care, hygiene, grooming, eating and drinking, and health. We consider how you get dressed, shower or bathe, eat or go to the toilet.
[62] Access Guidelines, 9.
The task of “eating” if viewed through a narrow lens, can involve the action of being able to transfer the food on a person’s plate into their mouth, which may involve cutting the food on the plate. The task of “eating” if viewed through a wider lens, can involve the sourcing of the food, say from the supermarket, preparing the meals and then transferring the food into a person’s month. The Tribunal takes the view, for an adult participant, that “self-care”, as one of the Prescribed Activities, involves both the cooking or preparation of the meals and transferring the food into the person’s month but does not include the action of planning for meals and acquiring the food (that is, stocking the fridge). The Tribunal will consider this latter task as part of the activity of “self-management”.
In Ms Newell’s SLE, she stated as follows about what she can and cannot do, in respect of the activity of self-care:
(a)“I drink water from plastic water bottles because I am unable to hold glass or ceramic cups. The pain in my hand has caused me to drop and break glasses before”;
(b)“I use my teeth to open a bottle of water, I do not have the strength to twist the lid. I have difficulty opening cans, I put it between my feet to hold the can or use a spoon to lift and pull”;
(c)“I cannot hold or tip a full kettle of water. I use a small jug to fill the kettle as I cannot carry it to the sink”;
(d)“To open a jar, I will put a towel on the floor and gently hit the jar against the floor to loosen the lid. If I cannot open the jar or can, I will just leave it, and have something that is microwavable”;
(e)“I have difficulty showering including washing my hair and back. I get lightheaded in the shower and need to sit down after bathing to regain my balance”;
(f)“I manage dressing myself as best I can and have pain afterwards. I wear loose comfortable clothing that is easy to take on and off… Not being able to dress myself the way I want to impact[s] my mental health”;
(g)“I used to shower every day and now shower every second day depending on my anxiety and pain levels. Sometimes this is every 3 days, but it upsets me as I like to be clean”; and
(h)“I brush my teeth as best I can daily”.
The Tribunal notes Ms Newell’s SLE, where she has described her capacity for preparing meals as follows:[63]
15. Meals – I have significant difficulties preparing and cooking meals. I cut food or open packets with two hands which puts me at risk of cutting myself. When I try to cut with a knife, I have to use by whole arm and shoulder to push down and cut food. I often purchase premade food to eat to reduce the time it takes me to prepare and cook meals. This has led to me eating unhealthy foods which affects my diabetes and mental health. I do not have the strength to hold even small items i.e., a cup of tea.
[63] Ms Newell’s SLE, [15].
Later in Ms Newell’s SLE, she said:[64]
I cannot cook healthy meals every day like I want to, I have tried using frozen vegetables, but I do not like the taste. I have trauma from my daughter being burnt at age 6 years old. I am extra cautious cooking with hot dishes as I fear breaking the dishes and burning myself. I have to adapt and find ways to cook that are safe and doable for me with the limitations of my hands.
[64] Ibid, [23].
At the hearing, Ms Newell said she has to use a minimum number of dishes because she drops things a lot and had dropped glasses, plates, pots, and pans. Ms Newell said she is not able to use a can opener and she finds it hard to “pull things”. She said she does not buy the type of food where she will need to do this.[65]
[65] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 21.
At the hearing, Ms Newell said that, generally, she does not have breakfast, or that she might smash up an avocado and have it on toast with salt and pepper. She said she would have avocado on toast about once a fortnight.[66] She said if she is “out”, she might buy a sausage roll so she does not have to handle anything. She later said that she does not like to have meals when she is out because of needing to administer insulin. Ms Newell said at lunchtime, she will usually have a “noodle cup”. She said that she would like to have a “ham, cheese and tomato sandwich”, “bacon and eggs” or “poached eggs”, but she said, “I can’t do any of that”.[67]
[66] Ibid, 44.
[67] Ibid, 42.
Regarding dinner, Ms Newell said that she cannot cut up potatoes, carrots, or any sort of hard vegetable. She said it was painful and dangerous for her to do so. She said she does not have the strength half of the time.[68] She said that she had tried preparing meals with her left hand but she considered this to be “highly dangerous” when a person is not left-handed. She said she had cut her finger on her right hand once, when using her left hand to prepare her meals.[69] Ms Newell was asked whether she had tried using the pre-cut vegetables able to be purchased at the supermarket. She said that when you look at them, specifically, the carrots, that they were already “pre-cooked” and had a “white thing over them”, so it was not possible for her to know how long they had been sitting there. She suggested that this food might have been there for weeks or a month. She also said there were only a few types of pre-cut vegetables, being carrots, cauliflower, and broccoli.[70]
[68] Ibid, 14
[69] Ibid, 41.
[70] Ibid, 42-43.
Ms Newell gave evidence that she resorts to buying meals from the supermarket, such as spaghetti bolognese and lasagne. Ms Newell said she, literally, cannot stir a pot unless it is something small and light. She said she does not have the strength to put water in a pot and to carry it over to the stove. She said she does not like using a lot of pots and pans.[71] Ms Newell said when she is reaching for items, it is painful and difficult. She says she drops things because she cannot grip.[72]
[71] Ibid, 14.
[72] Ibid, 15.
At the hearing, Ms Newell said that she could not remember the last time she had prepared a decent meal for herself and that it may have been three, six or 12 months ago.[73] She said she will eat frozen meals on most days of the week and that sometimes she will also buy and cook some potato wedges.[74]
[73] Ibid, 42.
[74] Ibid, 44.
At the hearing, Ms Newell was asked whether she had seen the diced or mincemeat products available at the supermarket. She said she had done so but explained that she would need to use pots and to stir a lot, if she used those products to make spaghetti bolognese or a casserole. Ms Newell gave evidence that she will buy a piece of steak about once a week, because she can just put it in the pan and flip it. She referred to having it with pre-prepared mashed potatoes.[75] The Tribunal does not accept Ms Newell’s evidence in paragraph [112] that she is unable to cook bacon and eggs because it is inconsistent with her evidence as referred to in this paragraph, that she is able to cook herself a piece of steak.
[75] Ibid, 43.
Ms Newell was asked at the hearing how she was able to cut the steak (in light of her hand issues). She said she was able to cut the steak by using a steak knife (because it was a lot sharper than a normal knife). She said when she is holding the steak to cut it, she will not hold the fork between her fingers, but will hold the fork (with the right hand) like she is stabbing the steak and will cut the steak with her left hand.[76] The Tribunal notes, however, that Ms Newell, by her own evidence, is able to cut a piece of steak and to feed herself this type of meal.
[76] Ibid, 43-44.
Ms Newell gave evidence at the hearing that she showers every second day.[77] Ms Newell said that she cannot wash her back because she is restricted in terms of putting her hands behind her back. The Tribunal accepts that Ms Newell may have trouble reaching behind her back; however, the Tribunal expects that many people in Ms Newell’s age bracket without a physical disability, share that challenge, necessitating the use of a long-handled shower brush, commonly used by people when showering or bathing, to reach some sections of their back.
[77] Ibid. 45.
Ms Newell said the main issue is the way in which she washes her hair. She said that lifting her arms affected her shoulders. She said it was hard to scrub her hair and that she has long hair. She said that if her right hand is hurting, that she uses her left hand to scrub her hair.[78] Ms Newell gave evidence that brushing her hair was also difficult and using a hair straightener was “a big problem”.[79] She said she does not use a hair dryer and will let her hair dry on its own.[80] She said that sometimes both of her hands go limp. She said that putting her hair up into a ponytail, she will need to do so in a particular way, or if she is at home, she will not put her hair up.[81] At the hearing, which took place by videoconference, the Tribunal was able to observe Ms Newell’s hair. It was neat and well-groomed. There was no indication that Ms Newell is unable to or was having difficulty keeping her hair clean, tidy, and well-groomed, despite Ms Newell’s choice to keep her hair at a very long length. The Tribunal accepts that Ms Newell might experience some pain when doing so, as reported by Ms Newell, but this has not resulted in the task not being completed, and in fact it appeared this task was being completed quite well, as was evident from the Tribunal’s direct observations of Ms Newell at the hearing.
[78] Ibid, 44.
[79] Ibid, 17.
[80] Ibid, 45.
[81] Ibid, 17.
Ms Newell said that washing her body was “not too bad” and that she used a lot of body wash. She said that bending over to wash her legs, affected her back. She said she had a lot of arthritis in her hands, back, hips, knees, and feet and that bending down and pulling herself back up hurt her joints.[82] She said she lives on her own, so she is able to walk around in a towel and let herself dry. She said she was not able to dry her feet and legs “very well”.[83]
[82] Ibid, 15.
[83] Ibid, 15.
During cross-examination, Ms Newell was asked if she had used a shower chair. She said that she could not afford one and they were “nearly $200”.[84] The Tribunal does not accept this evidence. Ms Newell is living in subsidised public housing and is in receipt of a regular pension. She has no dependents who are financially dependent upon her. Ms Newell’s own evidence is that she does not leave home often or involve herself in activities in the community (which might otherwise draw on her income were she to do so). Based on this evidence, the Tribunal considers that Ms Newell is able to afford a shower chair, even if Ms Newell was required to save over a certain period to be able to purchase it.
[84] Ibid, 45.
Ms Newell’s evidence is that she can dress herself.[85] She said that she does not wear jeans anymore because of the need to do up a zip and button. She explained that she cannot grip properly and will not wear anything with buttons. Ms Newell said she does not wear jumpers because while she can put a jumper on, she said that taking it off will hurt her, as she cannot pull and lift the jumper up. She said that instead, she will wear a jacket and tracksuit pants all the time. She said if it is a hot day, she will wear some light trousers with an elastic waist. When asked about how she felt about that, Ms Newell said that it affected her and that sometimes she felt like giving up. She said she does not have the quality of life she wants to have and does not live an independent life as she said she used to.[86] Ms Newell said she does not wear make-up.[87] Despite those feelings and the need to adapt the type of clothing that she wears, the Tribunal finds that Ms Newell is capable of dressing and undressing herself and to do so independently.
[85] Ibid, 46.
[86] Ibid, 16.
[87] Ibid, 17.
The Tribunal accepts that Ms Newell experiences fluctuating levels of pain and that she will have “good days” and “bad days” resulting in varying levels of functional capacity when it comes to activities of daily living. The Tribunal will consider the overall impact of the pain on Ms Newell’s functional capacity after taking into account both the good and bad days.
The Tribunal will consider whether any of the deeming provisions in r 5.8 of the Access Rules apply to Ms Newell in relation to the activity of “self-care”.
Based on the evidence referred to in paragraphs [108] to [122] above, the Tribunal finds that there are some tasks forming part of the activity of self-care that Ms Newell is unable to carry out without assistive technology (AT) or equipment (other than commonly used items), namely:
(a)undoing buttons or zips;
(b)taking jumpers on or off over her head;
(c)safely lift up a cup or glass with her right arm;
(d)holding cutlery in the usual manner when eating;
(e)cutting up hard vegetables;
(f)lifting heavy pots and pans;
(g)lifting up and pour from a kettle filled with water; and
(h)washing behind her back.
The Tribunal finds that Ms Newell can undertake some tasks within the activity of self-care, albeit with difficulty, such as:
(a)washing and drying her hair;
(b)drying her feet and legs; and
(c)putting an elastic band in her hair.
However, there are many other tasks which Ms Newell is able to undertake independently, such as:
(a)showering, provided she can sit down afterwards if she becomes lightheaded;
(b)washing her body;
(c)brushing her teeth;
(d)brushing her hair; and
(e)preparing and eating simple meals such as avocado on toast, instant noodles, bread and butter (as shown in the video footage lodged with the Tribunal), pre-prepared mashed potatoes, pan-fried steak or foods, and frozen meals;
(f)drinking from a plastic cup;
(g)cutting up a steak and eating it about once a week, albeit that she holds the knife and cutlery in an unusual manner and uses a steak knife;
(h)attending to her toileting needs; and
(i)dressing in clothes which do not have buttons, zips, or do not require being put on or off over her head.
In Mr Chapman’s Third Report, he stated:
(a)that Ms Newell has received OT from 30 July 2020 to 7 February 2023 for a range of “upper limb injuries and chronic conditions”.[88] In relation to “personal care (ability to shower/toilet/groom)”, Mr Chapman concluded as follows:[89]
It is anticipated that Mandy will continue to be independent in self-care in the next 12-24 months, however pain may persist.
Assistive aids and equipment would allow Mandy to complete self-care tasks with less pain. Such items include an electric toothbrush which she could use with her left hand, suction based nail clippers, light weight hair dryer, button hook, modified bra.
(b)that Ms Newell is “typically” “able to prepare meals independently” but, due to pain in her hands, that she has “trouble” with pouring water from the kettle, cutting vegetables and therefore has had to change the way she holds a fork, eating well balanced meals and opening cans.[90]
[88] Ms Newell’s HTB, 32.
[89] Ibid, 34.
[90] Ibid, 35.
At the hearing, Mr Chapman gave evidence that:
(a)Ms Newell had “nil issues” in relation to the activities of “communication, cognition and behaviour and learning”, based on his observations of Ms Newell while treating her;[91]
[91] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 56.
(b)Ms Newell has reduced functional capacity in her “upper limbs”, which he clarified at the hearing he was talking about her hands and wrists.[92] He said Ms Newell’s hand strength is reduced and her ability to complete tasks such as turning taps on and off is reduced;[93]
[92] Ibid, 65.
[93] Ibid, 56.
(c)Ms Newell’s range of motion, particularly of her thumb, limited her ability to grasp certain items and to use them as she used to be able to do so before her injury was present;[94]
[94] Ibid.
(d)tasks such as drying herself, holding and gripping a towel were more laboured for Ms Newell, and tasks such as dressing, brushing her teeth, doing buttons, and using a hairbrush were “more difficult” for Ms Newell. He said she could complete them independently but to do so causes her pain and the time it takes Ms Newell to complete them takes longer from his observations of some of the tasks and from his memory, he said that she had “altered the method in which she’s doing some of these tasks”.[95] Mr Chapman said that Ms Newell was brushing her teeth with her left hand, avoiding wearing clothes with buttons on them, and had stopped wearing make-up. He said she had not changed the way she prepared her vegetables based on his memory, and that she was completing this task independently;[96]
[95] Ibid.
[96] Ibid, 56-57.
(e)Ms Newell could not grasp the kettle and had difficulty pouring it because of the weight of the kettle;[97]
[97] Ibid, 57.
(f)Ms Newell used standard cutlery;[98]
[98] Ibid.
(g)Ms Newell had demonstrated using secateurs and reported that she was in pain when she used them;[99]
(h)Ms Newell was able to do up a zip and buttons;[100]
(i)Ms Newell was able to dry herself with a towel across her back and that she had the grip strength to mimic that;[101]
(j)he believed that Ms Newell was “able to complete all tasks” and that it would take longer than usual for her to do so, but he had not noted down during the assessment how long it had taken her to complete each task;[102] and
(k)he did not “provide occupational therapy for [Ms Newell’s] back” as far as he could recall. He said he had no memory of Ms Newell “speaking to what – her back was limiting her”.[103] He said he did not recall “discussions around back pain impacting sleep”. He said he recalled her reporting “pain in multiple joints”;[104]
(l)he has had discussions with Ms Newell about “boom bust” and had given her education on pacing strategies to reduce the risk of “boom bust” and to tell her to make small progressions of function by avoiding overdoing and underdoing it;[105]
(m)he has recommended that she has involvement with mental health services because her reduced function impacts on her mental health and increases her anxiety. He said that a mental health service could discuss strategies with Ms Newell, which he said was not within his scope of practice. He said that it was his understanding that there was a mental health practitioner involved at some point in time. He said that he had recommended to Ms Newell that she gain evidence from her mental health professional for her NDIS application;[106] and
(n)he believed the level of pain experienced by Ms Newell when undertaking self-care would not limit her ability to complete the task independently. Further, he gave evidence as follows:[107]
I believe she would be able to achieve independence but I believe it would either impair the function of the tasks, of the time taken to achieve the tasks, or it would impair her, I guess, choice of activities for the remainder of her days. It would impact her ability to have independence - well, not independence. It would impact her choice and control I believe across the rest of her days because she would be limited by her pain. But I think she would have independence within the tasks.
[99] Ibid, 57-58.
[100] Ibid, 58.
[101] Ibid.
[102] Ibid, 59.
[103] Ibid, 65.
[104] Ibid, 68.
[105] Ibid.
[106] Ibid, 70-71.
[107] Ibid, 70.

The types of supports provided through SWEP include AT to help with showering, bed accessories, home modifications (as relevant), specialised seating, walking, and standing aids and vehicle modifications. Under SWEP, an eligible person has access to the following bed accessories: self-help pole/bed blocks/bed raisers/bed extensions/bed rails/ and bed rail covers.[209] The maximum subsidy is $200 for each item. An eligible person also has access to shower stools and chairs and toilet seat raisers and extensions, with a maximum subsidy of $90.[210] An eligible person has access to specialised seating, including basic specialised seating to a maximum of $500, powered lift recliner chair to a maximum of $1,000, chair raisers to a maximum of $200[211] and hi-lo adjustable bed to a maximum of $2,000.[212] An eligible person has access to walking frames and walkers to a maximum subsidy of $300 and standing frames to a maximum subsidy of $550.[213] An eligible person has access to home modifications up to a maximum subsidy of $4,000 in their lifetime.[214]
[209] Ibid, 397.
[210] Ibid, 399.
[211] Ibid, 402.
[212] Ibid, 397.
[213] Ibid, 402.
[214] Ibid, 404.
At the hearing on 20 July 2023, Ms Newell said she had called the telephone number for SWEP on 28 June 2023 and had spoken to a lady who had taken her to where she could (and did) download the price schedule on the SWEP website. She referred to needing to be assessed to get anything from this or the HACC program. During the hearing, Ms Newell was asked if she could access any product or service based on her current financial situation, and she answered “No, not at all”.[215]
[215] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 228.
The process for applying for AT or home modifications through SWEP is set out in the SWEP Guide.[216] The SWEP Guide states that SWEP may be contacted by a person requesting AT or home modifications by email, mail or by telephone.[217] The first step is to complete a SWEP eligibility form. Then, the person must request an appointment with a relevant prescriber. The prescriber will complete an assessment and decide with the person which AT or modifications the person requires. SWEP will consider the application once received and let the person know the outcome of the request for AT or home modification.[218]
[216] Supplementary HTB, 375.
[217] Ibid, 376.
[218] Ibid, 375.
SWEP adopts a Priority of Access Framework which means that they will identify those persons in urgent need of AT and/or modifications and provide support to them as a priority. Other supports become available to persons as funds are available. This framework will take into account the physical safety of the client, mental and emotional health of the client, and independence for the client.[219] The Tribunal considers that Ms Newell would rate as a high priority under this Framework, particularly out of concern for her mental and emotional health, and consequently is likely to receive supports as a priority.
[219] Ibid, 378.
The Tribunal finds that the SWEP will fund the AT that the OTs that assessed Ms Newell have recommended for her. The Tribunal finds that Ms Newell is eligible to receive AT and modifications through SWEP because the OTs have recommended AT for her arising from her long-standing health conditions, which are likely to be deteriorating with her age, in particular, her osteoarthritis. The only exception to this is that Ms Newell states that she requires a hi-lo electric bed.[220] This was not recommended by Mr Chapman, nor Mrs Gibbs, and it was not otherwise evident that her Claimed Physical Impairments are at a stage where she requires mechanical assistance to get into and out of bed, as consistent with the observations able to be made from the video footage referred to in paragraph [195] showing that Ms Newell could get in and out of bed quickly and easily.
[220] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 230.
The Tribunal considers it likely that Ms Newell would be prioritised under the Framework referred to above and would be able to receive the recommended AT in a timely manner.
The Tribunal recognises that the purchase of the some of the AT that has been recommended for Ms Newell may exceed the maximum subsidies provided under the SWEP. The Tribunal acknowledges that, in contrast, if Ms Newell were to obtain those items under the NDIS, she would not be required to pay any subsidy. However, this factor alone does not mean that it is more appropriately funded under the NDIS. The Tribunal notes some of the items recommended for Ms Newell by the OTs would fall under the value of SWEP maximum subsidy.
As to Ms Newell’s financial position, at the hearing, evidence was adduced from Ms Newell about her income, assets and living expenses. Ms Newell’s evidence was that:
(a)she received about $970 per fortnight from her pension;[221]
[221]Ibid, 224.
(b)once her expenses are paid, she will have about $100 remaining at the end of the fortnight;[222]
[222] Ibid, 237.
(c)she will spend this $100 on “miscellaneous stuff”, such as medication or fuel for her car. When asked how much fuel she puts in her car (per fortnight), she said it would be about $30 to $50. Ms Weir questioned Ms Newell about this figure given her other evidence that she would only do a 10-to-15-minute trip per fortnight. Ms Newell said it will depend, because sometimes she had appointments, citing as an example that during that current week, she had had three appointments. Ms Newell referred to having nine medical appointments that month. She referred to having to see Dr Masters as a private patient two months prior, at a cost to her of $70. She said if she sees the Registrar, instead of Dr Masters, it will not cost her anything;[223]
[223] Ibid, 236.
(d)that she has no savings;[224]
[224] Ibid, 224.
(e)that she was paid on 19 July 2023, had a couple of bills to pay, had not done the shopping and had only $530 left in her bank account;[225]
[225] Ibid, 225.
(f)she pays $237.70 for rent per fortnight for her public housing unit, which is taken directly out of her Centrelink payments;[226]
[226] Ibid, 225.
(g)she receives concessions for her utility bills, but she said it was not “a great lot”;[227]
[227] Ibid, 225.
(h)she pays her car insurance (which is about $36 per fortnight), funeral cover, extras cover, water bill (which $15 per fortnight) out of her Centrelink payments;[228]
(i)she pays $50 per fortnight for her electricity and that does not have gas at the unit;[229]
(j)she said she has an extras policy as she said this is cheaper than her paying for her prescription glasses. This covers about 60 per cent of the cost if she goes to the dentist and chiropractor. She said this costs her about $20 “something” per fortnight;[230]
(k)she does not hold any contents insurance;[231]
(l)she will allow about $200 per fortnight for food;[232]
(m)she pays about $20 per fortnight for her medication for bipolar disorder and the additional cost for her other depression tablets and her “diabetes stuff” will bring the cost of her medication per fortnight up to about $30;[233]
(n)she pays $43.89 for a fridge that she is paying off;[234]
(o)she pays $38.80 to re-pay a Centrelink loan for her car registration;[235]
(p)she considers that she could probably afford only about $10 per fortnight to pay for disability services or goods;[236] and
(q)she had arranged for Council to send her some paperwork about the HACC Program for Younger People (HACC-PYP) services and explained that the prices would be as outlined in paragraph [256]. She said that she had been advised by email that at this point they were unable to accept any new clients for any type of domestic assistance for a few months.[237]
[228] Ibid, 225 and 234.
[229] Ibid, 234.
[230] Ibid, 226.
[231] Ibid, 234.
[232] Ibid, 235.
[233] Ibid, 235.
[234] Ibid, 237.
[235] Ibid, 237.
[236] Ibid, 226.
[237] Ibid, 227.
It is notable that the total number of AT items recommended for Ms Newell are not many, and their likely cost is not high. The Tribunal is satisfied that Ms Newell can afford to make the contributions required under the SWEP for those items, based on her current financial circumstances as outline above. By Ms Newell’s own evidence, she has an amount of $100 remaining per fortnight after she pays her living expenses, and this money could be used to save up and to subsidise the gradual acquisition of these supports.
On balance, the Tribunal considers that the recommended Early Intervention Supports in the form of AT and home modifications for Ms Newell, are not most appropriately funded under the NDIS and, instead, are more appropriately funded under SWEP.

HousingVic home modifications

The Tribunal was provided with a copy of a document entitled “Special accommodation requirements for public housing tenants operational guidelines” issued by the Victorian Department of Health and Human Services in October 2020 (HousingVic Guidelines). The HousingVic Guidelines state that they apply to current public housing tenants who have a special accommodation requirement due to a medical condition or disability.[238] Ms Newell meets this requirement. The type of supports potentially available to a person from HousingVic are stated to include “grabrails or lever taps, medical cooling, including air conditioning” and “major modifications such as bathroom stepless showers”.[239]
[238] HousingVic Guidelines, 4.
[239] Ibid, 5.
At the hearing, when taken to the HousingVic Guidelines, Ms Newell said that she does not need any grabrails (as she cannot use them due to her hands). She said she had never suggested handrails and that this was something that was suggested by the OT. The Tribunal notes that, on the relevant application form, it is possible for an eligible person to request a shower or bath seat when making an application.[240]
[240] Application for special accommodation requirements for tenants: For current housing tenants and their household members,6.
The Tribunal finds that the Early Intervention Support in the form of AT to help her be seated in the shower is most appropriately provided by HousingVic constructing a shower seat in Ms Newell’s unit as a minor modification under its special accommodation policy, if it is assessed as being required, and not more appropriately funded under the NDIS.

HACC

At the hearing, the Tribunal asked Mr Chapman if he had advised Ms Newell about the HACC program for people under the age of 65. He said he had not done so.[241] He said he could not say why he had not done so and said, instead, that in his role, it was something “that I have very little involvement in”. When asked whether Mr Chapman had talked to Ms Newell about the NDIS, his answer was “[y]es”.[242]
[241] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 69.
[242] Ibid.
The Tribunal finds that Ms Newell is eligible for supports under the HACC program as she is aged under 65 and requires assistance with some activities of daily living as set out above, especially house cleaning and yard maintenance. The Tribunal finds that Ms Newell falls into the HACC “target group” which encompasses persons with “moderate, severe or profound disabilities”.[243] Ms Newell has a moderate level of disability and while not elderly, she is in her mid-50s with a condition which is likely to continue to deteriorate over time, that is, osteoarthritis.
[243] Supplementary HTB, 124.
The services under HACC are delivered by the Council. Ms Newell’s main concerns about these services is that she would be required to make a contribution toward the cost of the supports, and she says she is unable to afford to do so; and that there is a waiting list to receive these services so she might be delayed in receiving them.
The evidence before the Tribunal revealed that it was likely that Ms Newell would need to wait a few months before she was taken on as a new client by the Council to receive such services. The Tribunal considers that, while it would be beneficial for her to have immediate access to such AT, a waiting period of a few months is insignificant, given the very long period of time that she has lived independently without those supports to date and in light of the fact that such supports would be ongoing.
Ms Newell gave evidence that she had engaged a cleaner through the Council for one-and-a-half hours each fortnight when she was recovering from her first operation.[244] Otherwise, the Tribunal considers that Ms Newell has not actively pursued the HACC services as an ongoing avenue of support for her, not because they are not easily available to her (as the above instance indicates), but because it is not her desire to have to pay any subsidy to receive support in the form of house cleaning or yard maintenance. Instead, it is Ms Newell’s preference that she receives these services on an ongoing basis entirely free and, if she is not able to do so, she has opted to complete those activities herself either independently, or with the help of her son to mow the lawn.
[244] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 239.
The “Community Care Fee Schedule July 2023 to June 2024” issued by the Council (Fee Schedule),[245] indicates that if Ms Newell were to obtain domestic services, as a person who falls into the low-income bracket, she would be required to pay $9.50 per hour for domestic assistance or personal care, and $21.10 per hour for home maintenance/lawns. Assisted shopping requires a contribution of $9.50 per hour. The cost of a three-course meal, if provided through the Meals on Wheels program, is $12.70, or $9.70 for a main meal only. The Tribunal acknowledges that Ms Newell is on the disability support pension with no other source of additional income. She has expenses to pay, such as the cost of her medication, food, as well as other living expenses such as clothes and the costs to maintain the car, petrol, insurances (or debts relating to them), and utility bills. Ms Newell is required to pay $237.70 subsidised rent each week.
[245] Supplementary HTB, 87.
However, bearing in mind the limited number of hours that Ms Newell is likely to reasonably require to clean her small unit (likely to be a maximum of two hours per fortnight, requiring a contribution of $19 per fortnight) and to periodically mow the lawns and trim the vegetation surrounding her unit (likely to be one hour per fortnight or two hours per month, requiring a contribution of $21.10 per fortnight), the Tribunal does not consider that the subsidies she is required to pay under the HACC program for domestic assistance and yard maintenance, are amounts that she is unable to afford when considering her income and expenditure. Ms Newell considers that she requires a greater level of intervention; however, the Tribunal is not satisfied that this is justified to maintain Ms Newell’s small unit occupied by only one person. Likewise, the Tribunal does not consider that the subsides she is required to pay under the HACC program for the cost of personal care to assist her with the shopping once a fortnight (likely to take no longer than two hours per fortnight (requiring a $19 contribution), including travel and unloading), or the preparation of meals if Ms Newell was to acquire them through the Meals on Wheels program, instead of paying to buy groceries or pre-made meals at the supermarket as she currently does, are amounts that she is unable to afford when considering her income and expenditure.
The Tribunal acknowledges that if Ms Newell were to obtain the domestic assistance and yard maintenance supports, and personal care or funding for meal preparation, under the NDIS, she would not be required to pay any subsidy. However, this factor alone does not mean that those supports are more appropriately funded under the NDIS. The Tribunal does not consider the “out of pocket” gap to be onerous in Ms Newell’s case as she falls into the lower income bracket and so the contribution she is required to make is at the bottom end of the scale of fees and the dollar amount contributions are modest. If Ms Newell is able to establish financial hardship, the Tribunal also notes at the bottom of the Fee Schedule that the Council states: “Fee relief is available on written submission under the hardship provision of our service guidelines”.
On balance, the Tribunal considers that the recommended Early Intervention Supports in the form of house cleaning and yard maintenance and personal care (or meal preparation through Meals on Wheels) are not most appropriately funded under the NDIS and, instead, are more appropriately funded under HACC program and delivered by the Council, with Ms Newell making a modest contribution towards those services at a level she can afford.
Archie Graham Community Centre/local swimming pool
On the last day of the hearing, Ms Newell gave evidence that she had contacted the Archie Graham Community Centre and had been told that she would need to pay an annual membership of $25 to participate in the program and that it would be $10.50 per one-hour session of hydrotherapy; $10 per class for women’s strengthening classes, $12 for yoga or chair yoga and $10 for a Pilates class. Ms Newell said she would be unable to afford to do hydrotherapy at this cost if she was to do it three times per week. If she were to attend three times per week, Ms Newell would be required to contribute $31.50 per week, which would use up a substantial part of the $100 per fortnight that she says she has left over after she pays her living expenses.[246]
[246] Transcript of Proceedings, Newell and National Disability Insurance Agency (Administrative Appeals Tribunal, 2021/4728, SM Parker, 26-27 June 2023 and 19-20 July 2023), 232.
However, the Tribunal was given the price list for the cost of her attending the local swimming pool, AquaZone Access (which is close to Ms Newell’s home).[247] The cost of concession pool entry is only $5.30. This would provide Ms Newell with the opportunity to walk and to exercise her body in water, should she wish to do so at a cost which the Tribunal is satisfied Ms Newell can afford. Ms Newell confirmed that the facility has an indoor pool. If she chose to, she could engage an exercise physiologist under the allocation of free sessions potentially available under MBS (see next section), who could provide her with a water-based exercise to complete at her local pool.
[247] Ibid, 247 and 249.
On balance, the Tribunal considers that the recommended Early Intervention Supports in the form of water-based movement therapy is able to be funded by the provision of an exercise physiologist to develop a water-based exercise program for Ms Newell to implement at her local swimming pool which she may access at concessional prices which the Tribunal considers Ms Newell is able to afford.
MBS
In relation to the recommendation by Mr Chapman that Ms Newell attend a chronic pain clinic, Ms Weir said that the NDIA contends that this is not a support that is most appropriately funded under the NDIS but instead under the public health system. Ms Weir referred the Tribunal to information about Chronic Disease
[248] Ibid, 269.
[249] Ibid, 272.
[250] Ibid, 274.
GP Management Plans on the Services Australia website but there is no specific information as to who would pay for the provision of such services and whether they are covered under the public health system.[248] Ms Weir also referred the Tribunal to the “MBS Online” webpage on the Department of Health and Aged Care website about Pain Management Service Charges and, specifically, a series of PDF fact sheets providing information about pain management services and costings.[249] Ms Weir said there were items under Medicare which provided for pain management. A scan was undertaken at the hearing of the items on a shared screen and none of them referred to pain management programs. Ms Weir also referred to the website of “Pain Australia” and contended that it is set out that, in conjunction with a person’s GP, patients could come to an arrangement about their management in terms of chronic health issues. Ms Weir did not point to any specific reference on this website about a person being able to access a pain management program under the public health or other general system.[250]

Ms Ryan, from the NDIA, informed the Tribunal at the hearing that the Royal Melbourne Hospital offered a pain management service via telehealth, which is available to Health Care Card holders. Ms Ryan referred the Tribunal to the following website: which refers to specialist assessments and management for people experiencing persistent pain. This webpage instructs the patient to bring their Medicare card, from which the NDIA contends it can be inferred that it is a service covered by Medicare. Mr Overend contends that it would be unsafe for the Tribunal to make such an inference.
There was insufficient evidence before the Tribunal to make a finding that Early Intervention Support in the form of a pain management program is a support more appropriately funded under the public health system. However, as set out in paragraphs [227]-[230] above, the Tribunal is not satisfied that Ms Newell is likely to benefit from undertaking a pain management program by reducing her future needs for supports in relation to her disability, or that it will benefit her by mitigating or alleviating the impact of her impairment upon her functional capacity to undertake the Prescribed Activities or prevent the deterioration of or improve her functional capacity.[251]
[251] Ms Newell does not have any informal supports caring for her on a regular basis, so the requirement in sub-para 25(1)(c)(iv) is irrelevant.
In conclusion, the Tribunal finds Ms Newell does not meet the early intervention requirements under paras 25(1)(b) or (c) of the NDIS Act. If the Tribunal is found to be wrong about that, it considers that sub-s 25(3) of the NDIS Act applies to Ms Newell and would exclude her from gaining access to the NDIS under the early intervention requirement provision in s 25, because the Tribunal is satisfied that the Early Intervention Supports, except for the provision of the pain management program, are not most appropriately funded or provided through the NDIS and are more appropriately funded or provided through the SWEP, HACC, HousingVic or the MBS.

CONCLUSION

For the reasons set out above, the Tribunal is not satisfied that Ms Newell meets either the “disability requirements” under s 24 of the NDIS Act or the “early intervention requirements” under s 25 of the NDIS Act.
The Tribunal affirms the Decision Under Review because Ms Newell does not meet the access criteria under s 21 of the NDIS Act.

I certify that the preceding 268 (two hundred and sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

.................................[sgd].......................................
Associate
Dated: 13 December 2023

Dates of hearing:

Date final submissions lodged:

26 & 27 June 2023; 19 & 20 July 2023

12 October 2023

Counsel for the Applicant: Bryn Overend

Solicitors for the Applicant: Victoria Legal Aid

Solicitors for the Respondent: HWL Ebsworth Lawyers
Tegan Weir (Solicitor Advocate)

[2023] AATA 4140

13 December 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Appeal

Procedural Fairness

Dates of hearing: Date final submissions lodged:	26 & 27 June 2023; 19 & 20 July 2023 12 October 2023
Counsel for the Applicant:	Bryn Overend
Solicitors for the Applicant:	Victoria Legal Aid
Solicitors for the Respondent:	HWL Ebsworth Lawyers Tegan Weir (Solicitor Advocate)